Opinion
W.C. No. 4-293-336
July 31, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Erickson (ALJ) dated December 16, 1996, as corrected on December 20, 1996. The respondents contend that the ALJ erroneously awarded temporary total disability benefits. We disagree, and therefore, affirm.
The pertinent facts are undisputed. The claimant suffered a compensable shoulder injury in 1991 and reached maximum medical improvement (MMI) in 1993. The claimant subsequently began working for Royal Metal Products as a parts riveter. On November 1, 1994, the claimant sought treatment at St. Anthony's Hospital emergency room with complaints of pain and restricted shoulder movement. There he was treated by Dr. Michael Mills, who released him to "light duty" or "light use" of his left arm.
The claimant did not initially realize the work-related nature of his 1994 shoulder pain, and therefore, he did not report an injury to the respondent-employer and resumed his regular employment. On November 21, 1994, the claimant left work as a result of a compensable low back injury. He reached MMI from the low back injury in July 1995.
On April 29, 1996, the claimant notified the respondent-employer that he sustained an occupational disease to his shoulder due to the aggravation of his preexisting condition caused by the 1991 shoulder injury. The respondents admitted liability for a shoulder injury, but denied liability for temporary disability benefits on grounds that no "authorized treating physician" restricted the claimant from performing his regular employment.
Crediting the opinion of Dr. Mills, the ALJ found that the 1994 injury precluded the claimant from performing his regular employment commencing November 1, 1994. Further, the ALJ determined that the claimant continues to be disabled, has not reached MMI, and has not been offered modified employment within his restrictions. Therefore, the ALJ ordered the respondents to pay temporary total disability benefits commencing April 29, 1996.
As argued by the respondents, a claimant is not entitled to temporary disability benefits unless the industrial injury has caused a "disability." Section 8-42-103(1), C.R.S. (1996 Cum. Supp.); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). For purposes of temporary disability benefits, the term "disability" refers to the claimant's physical inability to perform regular employment. PDM Molding, Inc. v. Stanberg, supra; McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995) (regular employment did not require driving, so medical restriction from driving did not preclude claimant from performing regular employment).
To prove a "disability" the claimant is required to present "credible evidence" in the form of an opinion of an "attending physician" that he is medically restricted from performing his regular work. The claimant's personal evaluation of his limitations is not, standing alone, sufficient to sustain the claimant's burden of proof. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995); Ray v. Martin Marietta Corp., W.C. No. 4-210-328, March 22, 1995, aff'd. Ray v. Industrial Claim Appeals Office, (Colo.App. No. 95CA0553, July 27, 1995) (not selected for publication). This is true because, under the applicable law, the "attending" physician's opinion of the claimant's ability to perform regular or modified employment is dispositive unless there are multiple attending physicians with conflicting opinions. Section 8-42-105(3)(c)-(d), C.R.S. (1996 Cum. Supp.); Burns v. Robinson Dairy, Inc., supra.
The respondents argue that the claimant failed to present credible evidence that the 1994 shoulder injury caused a "disability." In support, the respondents contend that Dr. Mills' opinion is insufficient to support the ALJ's finding of a"disability" because Dr. Mills was not an authorized treating physician as of April 1996. Furthermore, the respondents contend that the medical restrictions imposed by Dr. Mills does not constitute "objective evidence" of a disability. We reject these arguments.
We have previously held that the term "attending physician," as used in § 8-42-105(3)(c), is a physician who takes care of or gives attention to the claimant in connection with the industrial injury. See Velasquez v. Excel Corporation, W.C. No. 4-220-723, (June 10, 1997); Popke v. Drywall Service of Durango, W.C. No. 4-262-510 (September 18, 1996). We reached this conclusion because this definition represents the plain and ordinary meaning of the word "attending." See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (words in statute should be given plain and ordinary meanings). We adhere to our previously stated position.
In so doing, we recognize the employer's statutory right "in the first instance" to select the authorized treating physician for the industrial injury. Section 8-43-404(5)(a), C.R.S. (1996 Cum. Supp.). It follows that the claimant's "attending physician" will normally be an "authorized treating physician." However, there is no statute or case law which limits the term "attending physician" to an "authorized treating physician," and we have no authority to read such a limitation into the statute. See Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995); Jacoby v. Metro Taxi, Inc., 851 P.2d 245 (Colo.App. 1993). Consequently, we reject the respondents' contention that the claimant was required to present credible evidence from an "authorized treating physician" to support his claim for temporary disability benefits.
Here, it is undisputed that Dr. Mills examined and treated the claimant for shoulder pain which was subsequently determined to be the result of the industrial injury which is the subject of this claim. Therefore, the record contains substantial evidence to support the ALJ's implicit determination that Dr. Mills was an "attending physician." See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (identity of the treating physician or physicians is a question of fact for the ALJ).
Furthermore, Dr. Mills restricted the claimant to "light duty," and did not subsequently retract the restriction. Because there was no other attending physician in November 1994, the ALJ was not free to disregard Dr. Mills' opinion that the claimant was unable to perform regular work as of November 1, 1994. Thus, Dr. Mills' opinion supports the ALJ's finding that the claimant proved the industrial injury caused a "disability."
Moreover, even if the term "attending physician" refers to a physician who is "authorized" to treat the industrial injury, the result is unchanged. In Sims v. Industrial Claim Appeals Office, 797 P.2d 777, 781 (Colo.App. 1990), the court held that emergency treatment is an exception to the employer's right of selection, and that emergency treatment is "authorized" treatment. Under this view, Dr. Mills was an authorized treating physician on November 1, 1994.
The fact that Dr. Mills did not attend to the injury after November 1, 1994, does not diminish his status as the authorized attending physician as of November 1, 1994, nor does it preclude his opinion from being "competent" medical evidence that the claimant was unable to return to regular employment as of that date. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990) (ALJ to determine credibility and probative value of expert medical evidence); Gamboa v. ARA Group Inc., W.C. No. 4-106-924 (November 20, 1996).
Admittedly, the Sims court also held that once the emergency is over the claimant must give notice to the employer of the need for continuing medical treatment, and the employer then has the right to select a treating physician. 797 P.2d at 781. Consequently, the Sims court held that where the claimant continued to treat with the physician who had provided emergency care, without reporting the injury to the employer, the nonemergency treatment was unauthorized. Unlike Sims, this claimant did not continue to treat with Dr. Mills after November 1, 1994, and is not seeking reimbursement for further treatment from Dr. Mills.
Rather, the pertinent issue in this case is whether the claimant remained disabled by the shoulder injury after April 29, 1996. The ALJ determined that he did, and this finding is a plausible inference from the medical record. See Blue Mesa Forest v. Lopez, supra; Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, the ALJ determined that the claimant's entitlement to temporary disability benefits had not been terminated pursuant to § 8-42-105(3)(a)-(d).
To the extent that the respondents have raised other arguments, they are not persuasive. Accordingly, we have no basis for disturbing the ALJ's award of ongoing temporary disability benefits commencing April 29, 1996.
IT IS THEREFORE ORDERED that the ALJ's order dated December 16, 1996, as corrected December 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 31, 1997 to the following parties:
Myron H. Herrmann, 14150 W. 82nd Ave., Arvada, CO 80005
Scott Tarbox, Royal Metal Products, 3990 Havana St., Denver, CO 80239-3236
Deborah Gorney, Safeco Insurance Company, P.O. Box 5687, Denver, CO 80217
Neil D. O'Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625, (For the Claimant).
Daniel L. Rosenberg, Esq., Laura B. Embleton, Esq., 1200 17th St., #1700, Denver, CO 80202, (For the Respondents).
BY: ________________________________